Quinn v South Eastern Health Board
|Mr Justice Michael Peart
|30 November 2005
| IEHC 399
|Record Number: No. 2039P/1995
|30 November 2005
 IEHC 399
THE HIGH COURT
By Notice of Motion dated the 14th May 2004 the plaintiff seeks to have the Court review the decision of the Taxing Master on the ground that the allowances made by the Taxing Master in respect of the Brief Fee for Senior Counsel and Junior Counsel are inadequate. This was a medical negligence action, and the Brief fee for Senior Counsel was claimed at €47,615.18, and that for Junior Counsel was claimed at €31,743.45, being two thirds of the latter.
The fees were at first allowed on taxation by the Taxing Master were €22,500 for Senior Counsel and €15,000 for Junior Counsel, but, as the Taxing Master has stated in his Report to the Court, having considered written and oral submissions on the hearing of objections and having considered the nature of the case, the extent of the work involved and having carried out a revised careful examination and consideration of the sums allowed in the several comparable cases referred to by the defendant, and relying on his own experience of fees allowed in similar matters, he concluded that the sum allowed on taxation was"slightly on the light side", and he increased these Brief fees to €26,000 and €17,333 respectively.
The circumstances in which the claim arose were that when the plaintiff was fourteen years of age she suffered from appendicitis which resulted in an appendectomy being performed in November 1993. She was discharged from hospital after about ten days, but after a short time she began to experience pain in her right thigh. By April 1994 she was referred to an orthopaedic surgeon, but was later referred to another surgeon who diagnosed that she was probably suffering from a form ofmeralgia parasthetica due to an irritation of the lateral cutaneous nerve of the thigh. She was injected several times which gave her some temporary relief, but eventually the neurologist advised that surgery was necessary which would result in a division of the lateral cutaneous nerve of the thigh.
The parents of the plaintiff contended later that they were never advised that there was risk attached to this procedure. That operation was carried out in August 1994, and in the months which followed, it appears that her condition regressed to the point that she was worse off than before the operation the previous August, and that she was suffering considerable pain in her right leg, as well in her groin and lower abdomen. She was then referred to a neurologist, and it appears that as a result of the operation which had been performed it was not possible for that neurologist to determine what nerve or nerves might be implicated in the plaintiff's then condition. Without going into the effects of this continuing pain on the plaintiff in full detail, it is safe to say that she was suffering from considerable and ongoing pain in that area of her body, and that in the years which followed she continued to suffer greatly, and her quality of life was greatly diminished, with symptomology likely to continue.
The case came on for trial on the 11th July 2001 and was heard over a period of three days. Judgment was reserved until the 22nd March 2002, when the plaintiff succeeded in her claim of negligence, and was awarded damages in the sum of €300,000. The learned trial judge was satisfied on the evidence of the plaintiff's expert medical witness that the neurectomy had been the wrong treatment, that there had been no informed consent to that operation, and that in relation to the first operation, namely the appendectomy the doctrine of “res ipsa loquitur” applied.
By order of the learned High Court judge, the plaintiff was, in addition to her damages, awarded her"costs of this action when taxed and ascertained, to include reserved costs and costs of issues".
Before dealing with the submissions of Counsel, I will give some detail from the Report of the Taxing Master dated 21st October 2004. He states, inter alia, that at the hearing of the objections it had been submitted that he had failed to have due regard to matters relevant to the size of the Brief fee for Counsel, such as the fact that Counsel had committed to this case as far back as 1994 and"had a wholly interactive and hands on approach throughout the matter, which was wholly necessitated by the unique features of this case and the absence of explanations, facts, details, documents and reporting on the plaintiff's symptoms".
He states also that he had been referred to passages from the reserved judgment of O'Caoimh J. which had outlined the difficult issues involved in the case, and also the extensive report of the plaintiff's medical expert witness. In addition he had been referred to an e-mail from Senior Counsel involved in the case to the instructing solicitor, and in which Senior Counsel requested that he provided with medical research in the area from 1960, as well as any articles referred to in such research on an urgent basis so that he could"become an expert on the subject of meralgia parasthetica". The Taxing Master also noted that he had been furnished with Counsel's notes, and that he had also been referred to the significance and relevance of the extent of discovery which Counsel had to consider and the necessity for Counsel to master the medical research and literature necessary for the preparation for the case.
The Taxing Master states that having considered all submissions he concluded that the claimed Brief Fee for Senior Counsel was "excessive and exceptionally high", and after reconsideration of the matter had considered that €26,000 to be fair and reasonable, and a fee which"more accurately represented the going value for such an action".
He went on as follows:
"A major significant factor in this case was the limited amount of liability expert reports. The only liability witness was Mr Russell, neuro surgeon, who furnished one report. Secondly, Counsel had the benefit of a very thorough and detailed pre-trial consultation for which a sum of €2000 was allowed. A significant amount of the discovery documentation was to hand and examined by both Senior and junior Counsel when the settling of the Statement of Claim in November 1998 [sic]. It is also a common feature of medical negligence claims that Senior Counsel is involved throughout the lifetime of such litigation advising on numerous matters.
I have also had the benefit of examining the notes prepared by Senior Counsel for the hearing of this action. I would not class this as an unusual aspect on the part of Senior Counsel in such an action. I accepted fully that Counsel prepared professionally and thoroughly for the hearing. It is his professional duty to do so. In my opinion the Brief fee now allowed by me adequately remunerates for this reading in and preparatory work including the first day in Court. The refresher fees allowed by me were again the going rate and reasonable. Neither party has objected to them.
The Courts have directed that the Taxing Master must have regard for the fees allowed in comparable cases. It is impossible to have two identical cases. Therefore the fees taxed or allowed in other cases are only a guide, but a very compelling guide. It must be borne in mind that the hearing of the action was in July 2001. The fees allowed are what I considered fair and reasonable and the proper going rate at that time. I carried out a careful analysis and comparison with all the above cases referred to in arriving at my determination. It was also evident that no negotiation at all took place between solicitor and counsel in determining a reasonable Brief fee for the case. I was satisfied that no reasonably careful and prudent solicitor would offer to Counsel based on his experience and knowledge of fees charged and paid in cases of a similar cases [sic] a Brief fee of the magnitude marked by Senior Counsel on this case. It is in my opinion tantamount to a special fee and thus not allowable on a party and party basis. Further I had regard for the amount of damages allowed in each of the other cases."
James Salafia SC (who was not the Senior Counsel for the plaintiff in the action itself) has made an initial submission that the order of the Court (O'Caoimh J.) did not award to the plaintiff only part of her costs, but rather "her costs", and that any interference by the Taxing Master by way of reduction of Senior Counsel's fee and thereby Junior Counsel's fee is an interference with the intention of the Court when it awarded the plaintiff her costs of the action. He submits that an experienced and competent plaintiff's solicitor has agreed a certain fee with the Senior Counsel of his choice and that the decision of the Taxing Master has the effect now of depriving the plaintiff of a significant portion of her damages unless either her solicitor or Counsel themselves accept a fee less that that marked and agreed.
Mr Salafia has referred to the provisions in the Rules of the Superior Courts in Order 99, r. 37(18) RSC where it is provided that the Taxing Master shall allow all such costs, charges and expenses as appear to him to be necessary for the attainment of justice, and to the judgment of Gannon J. in Heffernan v. Heffernan, unreported, High Court, 2nd December 1974 to the effect that the onus is on the defendant to establish that the fee marked is the result of factors such as over caution, negligence, mistake, or that it is unreasonable in amount or unreasonably incurred. Mr Salafia has submitted that unless it is shown that the fee marked comes within any of these terms, it should not be interfered with. He has also referred to the practice which had grown up over many years where Counsel's fee had been based not on actual work done, but...
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